I have a question regarding divorce. Me and my husband were having a heated argument when I said to him: “Why don’t you just divorce me, why not? Upon this, he said: “OK”. Would this constitute a divorce since he has agreed to my request?
Classical Hanafi Fiqh works have dealt with the issue of a husband consenting to his wife’s divorce request by merely using phrases such as “Yes” without clearly uttering the words of divorce.
Imam Haskafi (Allah have mercy on him) states in his Al-Durr al-Mukhtar:
“If it is said to him [the husband]: “Have you divorced your wife?” to which he replies saying: “Yes” or “Indeed”, then one revocable divorce (talaq raj’i) will come into effect.”
Imam Ibn Abidin (Allah have mercy on him) explains in his commentary of the above text that the same ruling will apply if it is said to the husband: “Do you divorce your wife?” and he says: “Yes” in that one revocable divorce will come into effect even if the husband does not intend divorce. (See: Radd al-Muhtar ala ‘l-Durr al-Mukhtar 3/249)
As such, if the husband is asked whether he has divorced his wife or whether he is divorcing her, and he responds by merely saying “Yes” or “OK”, then this will be considered a clear (sarih) statement of divorce, hence a revocable (raj’i) divorce will come into effect regardless of whether the husband intended divorce or otherwise.
The above ruling relates to where the husband is asked whether he has or he is divorcing his wife. However, if the wife says: “Give me a divorce” or “Divorce me”, then a divorce will not come into effect if the husband merely responds with a “Yes” or “Okay”. It is stated Al-Fatawa al-Hindiyya:
“If the wife said to him [the husband]: “I am divorced from you?” to which he replies saying: “Yes”, then divorce will come into effect. However, if he says the same [i.e. “yes”] in response to her saying: “Divorce me”, then there will be no divorce even if he intends it.” (Al-Fatawa al-Hindiyya 1/356)
It is important to understand the difference between the two scenarios: Speech is categorized into an informative statement (khabar) and a creative statement (insha’). An informative statement informs the listener of some news; hence it can be agreed or disagreed with. As for a creative statement, it is not subject to any form of validation because it is not informing the listener of any news, rather it is a command, request, prohibition or something similar.
In the first scenario, the husband is responding to an informative statement (khabar) such as “Have you divorced your wife” or “Are you divorcing your wife” or “Am I divorced”. An informative statement can be responded to with a “Yes” or an “Okay” implying that “Yes, I have divorced my wife” or “Yes, I am divorcing my wife” or “Yes, you are divorced”.
In the second scenario, however, the husband is responding to a creative statement (insha’) such as “Why don’t you just divorce me” or “Divorce me” and as explained earlier, Insha’ is a speech that is not subject to being responded to with a “Yes” or “No”. As such, a simple “Yes” to “Divorce me” would not mean “Yes, I have divorced you”.
In conclusion, if your husband merely said “OK” or “Yes” when you asked him to divorce you, then that, in of it self, does not constitute a divorce. In order for divorce to take place, he would have to say something like: “OK, I divorce you”. In future, try avoiding such situations, since divorce in Shari’a is a very delicate matter and can easily ruin your marriage. May Allah protect us all, Ameen.
And Allah knows best
[Mufti] Muhammad ibn Adam
Leicester , UK